Kenneth Clarke: The practical effect of the Bill is exactly as my hon. Friend recommends, although it may have been drafted with a few too many provisos and provisions because of the deep suspicion with which these things are regarded. Essentially, however, we do not think that Norwich Pharmacal should apply to intelligence material provided in confidence to the British security services.
	I will not take too long on this because the argument is perfectly straightforward, but I want to tell the House that these are not false fears. Over the past year, we have picked up concerns from human agents. They have always been concerned about the degree to which their relationships can be protected, of course, but they are now becoming really concerned about disclosure to the British courts. Sir Daniel Bethlehem, a former legal adviser to the Foreign Office, told the Joint Committee on Human Rights that the flow of intelligence from the
	United States was being limited. He said that he did not want to exaggerate, but the point was that the trust of the United States had been weakened and that trust needed to be restored.
	Arguments tend to break out as to whether agents have any reason to be fearful, but that is not totally the point. As long as, as a result of hearing about the extraordinary process called Norwich Pharmacal, other intelligence agencies and our agents think that there is always a risk of disclosure by the British courts, the damage is done. To follow the point made by my hon. Friend the Member for Cities of London and Westminster (Mark Field), what on earth are we running that risk for?

Elfyn Llwyd: I would like to make some progress.
	I have no time to deal with that at this stage. The hon. Member for Wycombe (Steve Baker) may be right; I do not know. I would like to discuss it with him on another occasion, perhaps in Committee.
	If clause 7 goes through unamended, there will be no requirement to give excluded parties sufficient information about the case. I have heard the arguments about gisting, but surely in 99.9% of cases the gisting procedure will be the answer, coupled with other safeguards, one hopes.
	Nicholas Blake QC, in giving evidence to the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights, made the following comments on the situation that would arise after a judgment is given:
	“If the special advocate thinks there is an error of law in the closed judgment, he gets permission to say, to pass the message out to the other team to say ‘I think that you should be appealing, I can’t tell you why’...So there is a sort of open appeal. ‘We think there is something wrong but we don’t know what it is.’ And then the court goes into closed session, so it is antithetical to every”
	principle
	“of due process and open justice.”
	The Joint Committee on Human Rights has urged the Government to ensure that if CMPs are to be extended, there must be a
	“statutory requirement in all cases to provide the excluded party with a gist of the closed material that is sufficient to enable him to give effective instructions to his Special Advocate.”
	That is entirely reasonable, while taking on board what the hon. Member for South Swindon (Mr Buckland) says about avoiding breaches of national security, and so on. The Constitution Committee said in its report on the Bill published in June this year:
	“In our view, the court should be required, for example, to consider whether the material could be disclosed to parties’ legal representatives in confidence and whether the material could be disclosed in redacted form.”
	A related point that must be raised is the knock-on effect that clause 7 may have on appeals in civil cases, which is something that we really need to think through.
	The Law Society has pointed out that the extension of CMPs will have wider implications for civil litigation and the professional ethics of solicitors. Solicitors will be impaired in advising their clients on the merits of a case and the prospects of success if they are unable to see the evidence brought by the other party. They will also be unable to advise on any prospect of an appeal, so undermining the client’s right to legal assistance in the determination of their civil rights and the fair trial guarantees under article 6 of the European convention on human rights.
	The provisions contained in part 2 of this Bill will mark a departure—I am not saying that it will be radical, but it will be a departure—from the principles of open justice, and it will possibly undermine confidence in our justice system. I sincerely hope that this House will follow the example of the other place in seeking to amend what appears to be an unbalanced Bill. Discretion as to whether a CMP should be used must ultimately lie, of course, with a judge and not the Secretary of State. Although courts should be required to balance the interests of national security against those of fairness, either party in proceedings should be able to apply for a CMP and, perhaps most importantly of all, there should be a statutory requirement in all cases to provide the excluded party with a summary of the material to enable him or her to give cogent instructions to the special advocate representing his or her interests in court.